Family Responsibilities Discrimination?
Subtitle: F.R.D. — “you can call it FRED."
Apologies to my regular readers for being scarce on this blog lately. I’ve been busy, with billable work and otherwise — and maybe also needed a break from the blogging routine.
One activity has been speaking to several reporters for major publications about my CollegeRecruiter.com guest post: “Employers Using Facebook for Background Checking: Is It Legal?”
Anyhow, this item came my way, and I’ll just post it quickly, hopefully getting back in the groove of more frequent postings.
A New York Times article reports on a study by the Center for WorkLife Law discussing what is described as “a new category of discrimination suit being brought and being won.” The cases are referred to as involving ‘’family responsibilities discrimination, or F.R.D. (You can call it Fred.)”
Most plaintiffs are women caring for children, but about 10 percent are men, and some are caring for spouses or parents, not children. All claim discrimination at work because of caregiving at home.
According to this article:
Like so many evolving subsets in law, F.R.D. does not exist in any statute. Rather it is an argument being made often enough that it can now be counted and analyzed. ‘’Discrimination based on caregiving is not an expressed category’’ . . . . ‘’It’s a reflection of the creativity of lawyers who have set up a new subcategory of litigation within existing workplace discrimination laws.”
So if it doesn’t exist in any statute, what is the basis for lawsuits?
My very brief scan of the underlying study, and the cases highlighted in it, suggests that in fact the legal basis is most likely statutory — sex or pregnancy discrimination.
The study explains the legal theory this way:
Because women without caregiving responsibilities often fare well in organizations, successful maternal wall cases must establish that employees are punished not because of their sex, but because of their sex role. Thus, men can be discriminated against for being primary caregivers, if indeed they serve in a traditionally female sex role.
I find this explanation troubling and unsatisfying. Granted, I didn’t read the entire study. Nevertheless, it seems that the basis for a discrimination case would be that similarly situated males (i.e. male employees taking time off to care for children — or simply those who are fathers) are treated more favorably than female employees taking time off to care for children — or simply those who are mothers.
A more promising basis for such claims would seem to be the Family and Medical Leave Act (FMLA), a statute that does specifically — and with great precision — protect employees against undue conflict between family responsibilities and work responsibilities.
So, I guess my off-the-cuff response is that this “new category of discrimination” is either good old-fashioned disparate treatment gender discrimination or it’s perfectly lawful, provided it does not violate the FMLA. And the article is a media overreaction to a liberal academic’s theorizing. But hey, read the study and come to your own conclusions. . . .
Source:
New York Times (via LexisOne): “Family Needs In The Legal Balance
The Study:
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How about discrimination against people who don’t have kids? My boss has kids and the employees who have them are treated like kings. They are allowed to leave early, come in late, tons of time off, etc., while the employees with no kids have to stay late, work through lunch, are given more projects, etc. Isn’t that discrimination? I have a personal life too!
Thank you for the comment, Mary. A good reminder of a couple of points.
First, one should never overgeneralize about workplace trends; conditions vary too much depending on the industry, location, management styles, etc.
Second, employee perception of fairness is very important. I would not be surprised if employees with kids in this very same workplace had a very different perspective on this issue.
Finally, my answer to the question, “Isn’t that discrimination?”
Not unlawful under federal law, to my knowledge. Perhaps state law in some states bars discrimination based on “family status” or the like, which might be applicable to such a situation.
Ultimately, as an employee, my concern would be whether the additional effort I put in due to lack of childcare responsibilities is properly recognized in terms of compensation and/or promotion.
Hi, George –
If you do have some time to read the report, it may be worth your while. Plaintiffs have filed more than 800 cases with FRD fact patterns since 1971, and they have won about half of them (a much higher percentage than most types of employment claims). Their attorneys have used 17 different causes of action, some based on statutes (Title VII, FMLA, ERISA, ADA, etc.), and some based on common law (wrongful discharge, breach of contract, tortious interference, etc.).
The common thread — the thing that makes these cases FRD cases — is the underlying fact pattern. All the cases involve discrimination based on an employee’s family caregiving responsibilities. It includes pregnancy and d motherhood, and also men who are denied parenting leave, and baby boomers who are fired or retaliated against for taking FMLA leave to care for sick or aging parents. Almost all the cases involve unexamined biases on the part of employers about these workers (such as mothers don’t want to be promoted if the new job means travel or more hours, men who help to take care of their children aren’t masculine or aren’t team players, baby boomers with sick parents aren’t committed to their jobs), and involve negative job actions taken based on these biases.
Why track the cases this way? Because once the facts are seen as part of a larger pattern, and once the biases that give rise to the adverse actions are identified, employers can readily prevent family responsibilities discrimination and significantly reduce their exposure. (Average awards in FRD cases are $100,000, and some verdicts exceed $1,000,000, so exposure is significant.)
WorkLife Law works with employers and employees on issues surrounding FRD. We advise attorneys who represent both sides, and provide resources for both.
Of course, there is much more information in the report, and in several law review articles that will be appearing over the next few months.
I had a job 11 years ago… I was fired for “excessive absenteism” after having been out of work 3 seperate days in three months because my son was going thru teething. crankyness, and a fever. And Yet.. my mother left work twice as many times as me to take care of him. What don’t people understand about .. DAYCARE WILL NOT KEEP A SICK CHILD? And nowadays if they sniffle twice in one day they are “sick”.
So explain to me why the general attitude is “how admirable” when my mother leaves work to care for a sick grandchild. But when i leave work for a sick child its “dammit she isn’t here again!”
I have been a stay at home mom ever since … I wouldn’t be able to sue because I only worked there 3 months. I decided it wasn’t worth the hassle to go from job to job because they were pissy about time off caring for my kids.
So lets see … even if we assume no pay raises or promotions..
40 x 9 x 52 x 11 = $205,920.
Now you tell me its a stupid cause of action.
I would also add that a coworkers 3 month old died from SIDS shortly before I was fired. She was told .. “take all the time you need” which is fine ….
I guess one of my kids has to die to get time off and it be “acceptable”?
Thank you for your comment, KJ.
This is certainly a good example of the type of situation that could be described as “family responsibilities discrimination.”
Whether it is lawful or unlawful, and therefore Whether it is “a stupid cause of action” or a valid one, is an entirely different question than whether it is a good human resource management practice.
If the employer was large enough, and you had worked there the required amount of time, FMLA leave might have applied, depending on the seriousness of the child’s condition.
Absent a violation of the FMLA or ADA or treating otherwise similarly situated employees less favorably because they are female, minority, etc., it is up to the employer to define what it considers to be “excessive absenteeism.” Just as it is up to the employer to decide what it considers to be “poor job performance.”
I stand by my comments about “family responsibility discrimination.” As such, this is not a legal category or “cause of action.”
It is, however, a factual situation in which employers should think carefully about how they deal with their employees, both to avoid creating real causes of action like FMLA or sex discrimination and to avoid loss of good employees such as yourself.
I did leave something out … it’s up to you whether to amend my comments or not …
I was fired on a Monday. I had been considered a temp up until the Friday before. (3 days before) On Friday I was called into the supervisors office and told what a good job I had been doing and that he was pleased with my performance and offered the position permanently. Monday .. sick child .. stayed home .. the bastard called me at home to fire me.
Thanks, KJ. Sounds like he wouldn’t have been that great a guy to work for. If it hadn’t been that it would have been something else.
I’m not making excuses, and I know it hurts terribly to get fired like that. I think “workplace karma” eventually catches up with managers like that.
I’m sure your child(ren) have benefited from having you at home. But the choice should be yours . . .
My husband is currently under a reprimand and possible dismissal by his supervisor for “poor work performance”. While it is not specifically mentioned that my husband is being frowned upon for taking sick leave to care for me (his chronically sick wife), this supervisor has reprimanded him in the past for “poor attendance”, even though he’s never taken more sick leave than his work allows (12 days a year).In the past he has also compared my husband to a single mother and suggested his work advancement could be hindered because of his need to care for me. I am so angry I want to do something, but I don’t know if there is anything to be done. Can you offer any advise?